1

FLORIDA TRAFFIC-RELATED APPELLATE OPINION SUMMARIES

July – September 2017

[Editor’s Note: In order to reduce possible confusion, the defendant in a criminal case will be

referenced as such even though his/her technical designation may be appellant, appellee,

petitioner, or respondent. In civil cases, parties will be referred to as they were in the trial

court; that is, plaintiff or defendant. In administrative suspension cases, the driver will be

referenced as the defendant throughout the summary, even though such proceedings are not

criminal in nature. Also, a court will occasionally issue a change to a previous opinion on

motion for rehearing or clarification. In such cases, the original summary of the opinion will

appear followed by a note. The date of the latter opinion will control its placement order in

these summaries.]

I. Driving Under the Influence

II. Criminal Traffic Offenses

III. Civil Traffic Infractions

IV. Arrest, Search and Seizure

V. Torts/Accident Cases

VI. Drivers’ Licenses

VII. Red-light Camera Cases

VIII. County Court Orders

I. Driving Under the Influence (DUI)

Goodman v. State, __ So. 3d __, 2017 WL 3168979 (Fla. 4th DCA 2017)

The defendant was convicted of DUI manslaughter with failure to render aid, and

vehicular homicide with failure to render aid, and he appealed. The appellate court affirmed the

conviction and sentence for DUI manslaughter with failure to render aid, but it remanded to

vacate the conviction for vehicular homicide, stating: “Although the [trial] court withheld

adjudication on the vehicular homicide charge, we have held that the withholding of adjudication

on an offense constitutes a ‘conviction’ for double jeopardy purposes. . . . A conviction for DUI

manslaughter and for vehicular homicide involving a single victim violates double jeopardy.”

https://edca.4dca.org/DCADocs/2014/4479/144479_DC05_07262017_102726_i.pdf

State v. Proeh, 25 Fla. L. Weekly Supp. 428a (Fla. 17th Cir. Ct. 2017)

After a one-car accident, the defendant was taken to a hospital and consented to a blood

sample. He was charged with DUI with property damage, and the state filed a notice of intent to

issue a subpoena duces tecum as to the blood draw. The defendant filed a motion to quash the

subpoena, which the trial granted. The state appealed, and the circuit court, in its appellate

capacity, quashed the trial court’s order, holding that the defendant’s right to privacy had to yield

to the compelling state interest in investigating the criminal DUI charge, and that the medical

records were relevant.

2

Radeka v. State, 25 Fla. L. Weekly Supp. 422a (Fla. 13th Cir. Ct. 2017)

The defendant drove over a raised median while making a left turn. Two officers stopped

her, both testifying that the stop was for failure to maintain a single lane, and one officer

testifying that the stop was also for running over the curb. The defendant was charged with DUI

and filed a motion to suppress the stop and a motion to suppress statements. The trial court

denied her motions, and she appealed the denial of the motion to suppress the stop. The circuit

court, in its appellate capacity, reversed, stating that there was no pattern of unusual or erratic

driving, and no concern for the safety of other drivers existed. It held further that there was no

reasonable suspicion to stop the defendant based on a belief that she was ill, tired, or impaired.

State v. Hall, 25 Fla. L. Weekly Supp. 227a (Fla. 6th Cir. Ct. 2015)

The defendant was charged with DUI and she filed a motion to suppress. The trial court

granted the motion, “finding the delay of one hour and ten minutes to be unreasonable when any

of the other deputies on the scene could have performed the DUI investigation at any time.” The

state appealed, and the circuit court, in its appellate capacity, reversed, stating:

The length of the detention alone is insufficient to render it unreasonable absent

additional facts. . . . The question . . . is not whether it was possible for the

officers on the scene to accomplish the objectives by alternative means, but

whether the officers’ actions were unreasonable. . . . The initial stop in this case

resulted from [the defendant’s] traffic accident, and [she] was obligated to remain

at the scene of the accident until an investigation into the accident was conducted.

The investigating officer informed [her] at the conclusion of the accident

investigation that he was beginning a DUI investigation, and there was no delay

between the accident investigation and DUI investigation. It was not unreasonable

for the officers to wait for FHP to respond to the traffic accident, which was the

policy of the Sheriff’s Office, prior to conducting the accident investigation.

State v. Moore, 25 Fla. L. Weekly Supp. 227a (Fla. 17th Cir. Ct. 2017)

The defendant was charged with DUI and he filed a motion to suppress based on lack of

reasonable suspicion to detain him for a DUI investigation. The trial court granted the

defendant’s motion to suppress, and the state appealed. The circuit court, in its appellate

capacity, reversed, stating that “while there was no speeding observed, there was both the odor of

alcohol and the bloodshot eyes, PLUS slurred speech, the screeching of tires, coming within

inches of striking the patrol car, and [the defendant’s] yelling.”

Latorre v. State, 25 Fla. L. Weekly Supp. 218a (Fla. 11th Cir. Ct. 2017)

During closing argument in the defendant’s DUI trial, the state told the jury that the

defendant “had the opportunity at [sic] that room to not lose her license, and to provide a breath

sample. Why does -- why don’t we have the evidence to show you today?” The defendant was

convicted of DUI and appealed, arguing that the remarks constituted improper comments on her

right to remain silent. The circuit court, in its appellate capacity, reversed, stating that “the State

improperly suggested that it lacked evidence due to the [defendant’s] refusal” to testify, and that

it did not “prove beyond a reasonable doubt that this error did not contribute to the verdict.”

3

Bachiochi v. DHSMV, 25 Fla. L. Weekly Supp. 215b (Fla. 6th Cir. Ct. 2017)

The defendant was arrested for DUI and her license was suspended. She sought review,

arguing that the stop was not lawful and that the hearing officer considered hearsay statements

(made by the stopping officer to the investigating officer). The circuit court, in its appellate

capacity, denied review, stating that

the evidence establishing the basis for the initial stop indicates that [the stopping

officer] stopped [the defendant] because [she] was asleep in the driver’s seat of

the vehicle while it was stopped on the shoulder of the road with the keys in the

ignition. Since the Complaint/Arrest Affidavit specifically states that the reason

for the stop was for ‘sleeping in the driver’s seat,’ there is no competent

substantial evidence that could support the initial stop being lawful based on the

occurrence of a traffic infraction. However, the totality of the circumstances

supports the initial stop as lawful based on the existence of reasonable suspicion

created by [the stopping officer’s] legitimate concern for the safety and welfare of

[the defendant] and the public.

As to the defendant’s hearsay argument, the court stated that “reports submitted by law

enforcement, regardless of whether they are hearsay documents, are properly within the purview

of the hearing officer to consider.”

II. Criminal Traffic Offenses

State v. Miller, __ So. 3d __, 2017 WL 4296307 (Fla. 2017)

The defendant was charged with violating section 322.34(5), Florida Statutes – habitual

traffic offender driving with a license that had been revoked under section 322.264. He filed a

motion to dismiss, arguing that he never had a Florida license, which was a prerequisite for the

offense. The trial court granted the motion and reduced the charges to driving without a valid

driver license, and the state appealed. The Third District Court of Appeal aligned with the First

District Court of Appeal and affirmed, but certified conflict with the Second, Fourth, and Fifth

district courts of appeal. The supreme court affirmed, stating: “Having a driver license that has

been revoked under the habitual traffic offender statute, section 322.264, Florida Statutes, is a

necessary element of a section 322.34(5) offense. Therefore, defendants who have never

possessed a driver license may not be charged under section 322.34(5).”

http://www.floridasupremecourt.org/decisions/2017/sc16-1170.pdf

State v. Dahl, __ So. 3d __, 2017 WL 4280601 (Fla. 4th DCA 2017)

The defendant pled guilty to leaving the scene of a crash involving death. She was

sentenced to 364 days in jail and ten years’ probation with conditions. The trial court withheld

adjudication over the state’s objection, and the state appealed. The appellate court reversed,

stating:

After the State’s notice of appeal was filed, the trial court recognized its

mistake, entered an order that its previous withhold of adjudication was now

4

“converted” to an adjudication of guilt, issued a new sentencing order, and

amended the judgment to adjudicate [the defendant] guilty. Thereafter, the State

filed its motion to quash the amended judgment and sentencing order, arguing that

the trial court did not have jurisdiction to enter an amended judgment adjudicating

[the defendant] guilty because the State already filed a notice of appeal and an

appellate case number was assigned. The court denied that motion without a

hearing. Our review is de novo. . . .

As [the defendant] concedes, the trial court erred . . . because section

775.08435(1)(a), Florida Statutes (2015), prohibits a court from withholding

adjudication of guilt for “[a]ny capital, life, or first degree felony offense.” . . .

Further, the trial court lacked jurisdiction to enter its corrected sentencing

order and amended judgment because the trial court was divested of jurisdiction

when the State filed its appeal. . . .

Accordingly, we reverse the trial court’s withhold of adjudication and

remand for entry of an adjudication of guilt.

https://edca.4dca.org/DCADocs/2016/3001/163001_DC13_09272017_093135_i.pdf

Jackson v. State, __ So. 3d __, 2017 WL 3896978 (Fla. 5th DCA 2017)

The defendant was charged with leaving the scene of a crash involving death. Her main

defense theory was that her confession had been obtained improperly, as the detective who

interviewed her suggested that witnesses had identified her as the driver, which was not true. The

state’s expert testified that the defendant said “she felt pressured because the detective knew that

[she] had done it.” The defense objected and then moved for a mistrial, arguing that the

testimony of the state’s expert constituted “the introduction of an admission by [the defendant],

which the State had not disclosed to the defense during discovery” The trial court denied the

motion, and the defendant was convicted. She filed a motion for new trial, which the trial court

denied. She appealed, and the appellate court reversed, stating: “The content of [the state’s

expert’s] testimony . . . was the equivalent of an admission of guilt by [the defendant]. The presence

of [her] attorney during the interview with [the expert] did not negate the necessity for a Richardson

hearing—defense counsel argued that [the defendant] never made any such admission and that [the

state’s expert] mischaracterized her statement. . . . [W]e cannot conclude that the trial court’s failure

to conduct such an inquiry was harmless error.”

http://www.5dca.org/Opinions/Opin2017/090417/5D16-619.op.pdf

Parenti v. State, __ So. 3d __, 2017 WL 3567501 (Fla. 5th DCA 2017)

The defendant was convicted of DUI manslaughter (count I), driving while license

suspended or revoked causing death (count II), and vehicular homicide (count III). He filed a

motion for postconviction relief alleging ineffective assistance of counsel, which the trial court

denied. The defendant appealed, arguing that defense counsel “provided ineffective assistance by

not informing him that he qualified for sentencing as a habitual felony offender (‘HFO’),” and

that if defense counsel had informed him that he faced a maximum sentence of 30 years’

incarceration he “would have unhesitantly accepted the State’s plea offer.” The appellate court

5

reversed and remanded, stating: “We disagree with the trial court’s conclusion that, because the

State did not file its notice of intent to seek an HFO sentence until after trial, defense counsel did

not provide ineffective assistance. Defense counsel should have informed [the defendant] that his

twelve prior felony convictions potentially qualified him for the HFO designation, regardless of

whether the State sought HFO sentencing before or after trial.”

http://www.5dca.org/Opinions/Opin2017/081417/5D16-2203.op.pdf

Pitts v. State, __ So. 3d __, 2017 WL 3428273 (Fla. 1st DCA 2017)

The defendant was convicted of driving with a suspended license (felony) and leaving the

scene of a crash involving death (felony). He appealed, raising four arguments. But the appellate

affirmed.

The defendant argued that the trial court should have severed the two charges. But the

appellate court stated: “Two or more offenses may be joined if they are based on the same act or

transaction, or two or more connected acts or transactions. . . . Here, the two acts were

connected. [The defendant] left the scene while driving with a suspended license. Plus, the status

of [his] license was relevant to [his] motive in fleeing.” Further, the defendant “failed to

demonstrate that severance was necessary for a fair determination of his guilt or innocence on

either charge.”

The defendant also argued that “the trial court should have granted his motion for

judgment of acquittal because the State failed to refute his reasonable theory of innocence.” But

the appellate court noted that in his motion for judgment of acquittal he had argued “a theory of

innocence that someone else was driving. . . . Even if [the defendant] could concoct a new theory

of innocence here . . . , it would not help [him]: There was sufficient evidence below to refute

both theories.”

The defendant’s third argument was that “the trial court should have excluded evidence

of his son’s hearsay statements” given by his former girlfriend (his son’s mother). The defendant

had made a hearsay objection, but the trial court overruled it, and the appellate court held there

was no abuse of discretion because the statement was offered “to show the effect on the listener

rather than the truth of the statement. . . . [The defendant’s] response to an allegation that he

killed someone is relevant, so there was no error in admitting the testimony.”

The defendant’s final argument was that “the trial court erred by allowing the State to

introduce evidence of the former girlfriend’s prior inconsistent statements.” At trial, the

prosecutor asked the former girlfriend whether the defendant had told her not to report the crash,

and she “unequivocally denied it. The State subsequently called the investigating officer and

asked what the former girlfriend had told him. Over [the defendant’s] objection, the officer

testified that the former girlfriend said [he] had instructed her not to tell the police. This

testimony was admissible because it directly contradicted the former girlfriend’s testimony.”

https://edca.1dca.org/DCADocs/2016/2156/162156_DC05_08102017_112658_i.pdf

Atkins v. State, __ So. 3d __, 2017 WL 2989719 (Fla. 1st DCA 2017)

6

The defendant was convicted of burglary of a conveyance and carjacking, which he

argued constituted double jeopardy. The appellate court disagreed “because the offenses do not

share identical elements and because neither is subsumed in the other.”

https://edca.1dca.org/DCADocs/2015/4399/154399_DC05_07142017_084309_i.pdf

State v. Bojanic, 25 Fla. L. Weekly Supp. 424b (Fla. 17th Cir. Ct. 2017)

The defendant was cited for leaving the scene of an accident, but he did not sign the two

citations. His attorney filed a motion to dismiss, alleging that the defendant “was never served

with the citations nor was he arrested.” The trial court granted the motion to dismiss for lack of

jurisdiction, but the circuit court, in its appellate capacity, reversed and remanded, stating that

“the trial court’s jurisdiction was invoked and prosecution commenced because the State filed an

information, a summons to appear was sent to the [defendant], [he] was represented by counsel

at arraignment, pretrial status hearings were scheduled, and defense counsel’s knowledge of all

this was imputed to his client.” The court held further that “although the State did not object in

the trial court, a trial court’s erroneous ruling on jurisdiction is considered fundamental error

which needn’t be preserved in order for appellate review on the issue to occur.”

Lachance v. State, 25 Fla. L. Weekly Supp. 308b (Fla. 17th Cir. Ct. 2017)

The defendant appealed his conviction and sentence, arguing that “by not objecting to the

inadmissible hearsay from dispatch to the deputy that his license was suspended, ineffective

assistance of trial counsel is evident on the face of the record. Additionally, [the state] sought to

prove that [the defendant] knew his license was suspended by his admission to the deputy, but

there was no independent evidence admitted that a crime had been committed, and as such, the

State failed to prove a corpus delicti of the offense. Without such evidence, [the defendant’s]

admission should not have been admitted.” The state conceded error, and the circuit court, in its

appellate capacity, reversed and remanded for a new trial.

III. Civil Traffic Infractions

IV. Arrest, Search and Seizure

Presley v. State, __ So. 3d __, 2017 WL 4296316 (Fla. 2017)

While on drug offender probation that included the condition that he would not, nor

would he associate with anyone who illegally did, use alcohol or drugs, the defendant was a

passenger in a vehicle that was stopped for a faulty taillight and a stop sign violation. Another

passenger tried to leave and became belligerent. During the incident, the defendant told an

officer he had consumed alcohol and later asked, “So what is the problem?” The officer told the

defendant “we’re just talking, man. You can’t go anywhere at the moment because you’re part of

this stop.” After a background check showed that the defendant was on drug offender probation

with the condition that he not consume alcohol, he was arrested for violation of probation, and

during the search incident to arrest an officer found a bag of cocaine in his pocket. The defendant

filed a motion to suppress, which the trial court denied, holding that “the limited nature and

duration of the detention did not significantly interfere with his Fourth Amendment liberty

interests.” In Presley v. State, 204 So. 3d 84 (Fla. 1st DCA 2016), the First District Court of

7

Appeal affirmed but certified conflict with the Fourth District decision in Wilson v. State, 734

So. 2d 1107 (Fla. 4th DCA 1999). The supreme court affirmed Presley and disapproved of

Wilson, determining that two United States Supreme Court cases “support the conclusion that a

passenger may be detained for the duration of a traffic stop.” As to the reasonableness of the

duration of the stop, the supreme court noted that “although this traffic stop may have lasted

longer than a routine, uneventful stop, it was prolonged not by law enforcement, but by the fact

that one of the passengers exited the vehicle and attempted to leave.”

http://www.floridasupremecourt.org/decisions/2017/sc16-2089.pdf

Jacobson v. State, __ So. 3d __, 2017 WL 4158822 (Fla. 1st DCA 2017)

An officer investigated a possible vehicle accident and determined that, although the

vehicle damage was preexisting, the defendant was intoxicated. Having no basis to arrest the

defendant, the officer warned her that he’d arrest her for DUI if he saw her driving. A little over

an hour later the officer saw the defendant driving her car away, so he followed her, and

although he did not see her disobey traffic laws or driving erratically he eventually stopped her

and arrested her for DUI and a search revealed cocaine in her pocket. The defendant filed a

motion to suppress, arguing the stop was illegal because she had not broken traffic laws and was

not driving erratically, and that the stop was not supported by a founded suspicion of criminal

activity because “the officer’s observation of her intoxication during the first encounter was not

corroborated by any field sobriety exercises.” The trial court denied the motion, and the appellate

court affirmed, stating:

The founded suspicion came from the rather unusual circumstance wherein the

officer had the opportunity to personally observe that the [defendant] was

extremely intoxicated approximately one hour prior to observing her driving. His

training and experience led him to conclude that it would have been impossible

for [her] to have sobered up within the hour. Thus, the officer’s stop was justified

out of his belief that the appellant was impaired and his concern for the safety of

the public. . . . We reject the [defendant’s] assertion that the officer’s initial

observation of her intoxication should have been corroborated by field sobriety

exercises because, at the time of their first encounter, the appellant was not

driving.

https://edca.1dca.org/DCADocs/2016/1400/161400_DC05_09202017_091940_i.pdf

Johnson v. State, __ So. 3d __, 2017 WL 3616438 (Fla. 3d DCA 2017)

After a robbery in which a store owner was killed, an officer responding to BOLOs

stopped the car the defendant and a co-defendant were in, and both defendants were charged with

first degree felony murder. Both moved to suppress the traffic stop based on lack of reasonable

suspicion. The trial court denied the motions, and the defendant was convicted of second degree

murder and his co-defendant was convicted of first degree murder. Both appealed. The

defendant’s appellate counsel had not raised the denial of the motion to suppress on direct

appeal, and the appellate court affirmed his conviction and sentence per curiam. His co-

defendant’s attorney did raise the issue on appeal, and the appellate court reversed his

8

conviction, “holding that the trial court erred in denying the motion to suppress the traffic stop

because the officer lacked reasonable suspicion.”

The defendant filed a timely petition for writ of habeas corpus, arguing that “his appellate

counsel was ineffective for failing to argue that the trial court erred in denying the motion to

suppress. The State argues that the petition should be dismissed as successive because Johnson

filed a previous petition alleging ineffective assistance of appellate counsel on different grounds,

which was denied. Johnson agrees that we have discretion to dismiss the petition as successive,

but maintains that we must grant relief to prevent a manifest injustice.” The appellate court

agreed and granted the petition, stating:

Disparate treatment of similarly situated co-defendants can result in manifest

injustice, warranting habeas relief. . . .

We are mindful that our authority to grant a writ of habeas corpus based on

manifest injustice should only be exercised in “uncommon and extraordinary

circumstances.” . . . However, we find that this case presents one of those rare

circumstances. Failing to grant Johnson the same relief afforded to [his co-

defendant], under virtually identical circumstances, would be an “incongruous

and manifestly unfair” result.

We find it unnecessary to allow a new direct appeal, as such a proceeding would

be redundant to [the co-defendant’s] direct appeal. . . . We therefore vacate

Johnson’s conviction and sentence for second degree murder and remand for a

new trial.

https://edca.4dca.org/DCADocs/2016/3571/163571_DC03_08232017_091217_i.pdf

State v. Adams, __ So. 3d __, 2017 WL 3567004 (Fla. 5th DCA 2017)

After stopping the defendant’s vehicle on the suspicion that the window tint was too dark,

officers ordered the defendant to exit the vehicle and he was arrested. He filed a motion to

suppress evidence that was discovered in plain view, which the trial court granted. The state

challenged the order and the appellate court reversed, holding that “the State’s argument

regarding the justification for ordering [the defendant] from the vehicle was sufficient to

preserve the issue.”

http://www.5dca.org/Opinions/Opin2017/081417/5D17-442.op.pdf

Lopez v. State, __ So. 3d __, 2017 WL 3161046 (Fla. 3d DCA 2017)

The defendant was a passenger in a vehicle parked in a no-parking zone. An officer asked

the driver for his license and registration, and after noticing the defendant “exhibiting odd

behavior and appearing nervous and shaking,” the officer told the defendant to exit the vehicle,

which he did, but then he fled and threw an object over a fence. The defendant was later charged

with possession with intent to deliver cocaine, tampering with evidence, and resisting an officer

without violence. He filed a motion to suppress, arguing that, while the officer had the authority

to order him to exit the vehicle, once he had exited he was free to leave, and that there was no

reasonable suspicion to detain him during the traffic stop. The trial court denied the motion, and

9

the appellate court affirmed, stating that the “interest of officer safety compels the conclusion

that an officer may order the exiting passenger to remain at the scene for the duration of the

traffic stop.”

http://www.3dca.flcourts.org/Opinions/3D16-1998.rh.pdf

Sammiel v. State, __ So. 3d __, 2017 WL 2983991 (Fla. 4th DCA 2017)

Police stopped a minivan that fit the description in a BOLO, and the defendant was

arrested for robbery and murder. He moved to suppress evidence of the cellphone found in the

vehicle and his statement, arguing that the arrest was unlawful because “law enforcement did not

have reasonable articulable suspicion to justify stopping the van [because] the BOLO in this case was

vague.” The trial court denied the motion, and the appellate court affirmed, stating that

although the physical description of the van given by the eyewitness in the 911 call

was relatively bare-bones (“grayish-greenish beat up van”), there were four additional

factors which created reasonable suspicion to stop the van. First, the BOLO came

from a reliable source: a citizen eyewitness who had no interest in the situation and

who was fully cooperative with law enforcement. Second, there were virtually no

other cars on the road at the time the BOLO went out. Third, the witness told law

enforcement that there were at least three people in the vehicle and was able to

identify the vehicle’s direction of travel. Fourth, law enforcement stopped the vehicle

within 10 minutes of the BOLO and less than 5 miles away from where it was

initially spotted. Under the totality of these circumstances, law enforcement had a

reasonable suspicion to conduct the stop.

https://edca.4dca.org/DCADocs/2015/3310/153310_DC05_07122017_084044_i.pdf

A.D.P. v. State, 223 So. 3d 428 (Fla. 2d DCA 2017)

A vehicle was reported stolen, and when an officer found it a few days later a bead

necklace that had been hanging from the rearview mirror was gone and the defendant’s palm

print was found on the mirror. The defendant was charged with grand theft motor vehicle, the

trial court denied his motion for judgment of dismissal, and the defendant was adjudicated

delinquent. The appellate court reversed, stating: “Evidence that a person was a passenger in a

previously stolen vehicle is insufficient to prove the theft of the vehicle. . . . The . . . State relied

on the palm print on the rearview mirror and the fact that the vehicle was parked outside a

building where A.D.P. was known to have lived. The trial court determined that this evidence

‘pointed to’ A.D.P. and observed that usually the driver is the one ‘playing with’ the rearview

mirror. But ‘suspicion alone is not sufficient to meet the State’s burden of proof.’” http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/July/July%2014,%202017/2

D15-5341.pdf

J.V. v. State, 221 So. 3d 689 (Fla. 4th DCA 2017)

After a traffic stop of a vehicle in which the defendant was a passenger, police found a

firearm, heroin, and rock cocaine. The defendant was arrested and was found delinquent. He

appealed, arguing that “his adjudications on two separate counts for possession of drug

paraphernalia arising from the same incident violated double jeopardy.” The appellate court did

10

not address the double jeopardy issue but reversed the delinquency adjudication because of a

fundamental defect in the charging document that amounted to fundamental error:

Both counts charged appellant with possession of “drug paraphernalia being used,

intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise

introducing into the human body a controlled substance, contrary to Florida

Statute section 893.147(1)(b).”

At trial, however, the state prosecuted appellant on the theory that appellant used

or possessed drug paraphernalia to “pack, repack, store, contain, or conceal” a

controlled substance, which would be a violation of section 893.147(1)(a). Yet, as

noted above, the state did not allege that element in the delinquency petition; nor

did the state cite section 893.147(1)(a) in the petition. The petition was thus

fundamentally defective as to Counts V and VI because those counts cited the

wrong statutory provision and failed to allege an essential element of the crime

for which appellant was tried.

https://edca.4dca.org/DCADocs/2016/0442/160442_DC13_07052017_091426_i.pdf

V. Torts/Accident Cases

Holmes Regional Medical Center, Inc. v. Allstate Insurance Co., __ So. 3d __, 2017 WL

2981863 (Fla. 2017)

Hintz was injured when his scooter collided with an automobile driven by Emily Boozer,

who was driving her father’s car, which was insured by Allstate. The jury found the Boozers

liable for Hintz’s injuries and awarded his guardian, Stalley, $14,905,585.29, which was reduced

by 25% because of Hintz’s comparative negligence. Allstate paid $1.1 million, its policy limit,

but the Boozers did not pay the remainder of the judgment.

After the PI verdict, Stalley filed a medical malpractice action against the petitioners,

Holmes and other medical providers, seeking “recovery for the same injuries involved in the

initial lawsuit against the Boozers.” Respondents Allstate and Emily Boozer were granted leave

to intervene and “filed complaints claiming they were entitled to equitable subrogation from the

medical provider defendants,” who sought dismissal of the complaints because Allstate and

Boozer had not paid Hintz’s damages in full. The trial court agreed with the medical provider

defendants and dismissed the respondents’ complaints with prejudice.

The First District Court of Appeal reversed, finding that “the right to equitable

subrogation arises when payment has been made or judgment has been entered, so long as the

judgment represents the victim’s entire damages” and that “Florida courts have allowed

subrogation claims to proceed on a contingent basis,” and certified this question: “IS A PARTY

THAT HAS HAD JUDGMENT ENTERED AGAINST IT ENTITLED TO SEEK EQUITABLE

SUBROGATION FROM A SUBSEQUENT TORTFEASOR WHEN THE JUDGMENT HAS

NOT BEEN FULLY SATISFIED?”

11

The Supreme Court reversed, stating: “The Fifth District erred in holding that

Respondents could assert claims for contingent equitable subrogation without first paying the

judgment in full. As such, we answer the certified question in the negative, reverse the district

court’s decision, and remand the case to reinstate the dismissal of the equitable subrogation

claims.”

http://www.floridasupremecourt.org/decisions/2017/sc15-1555_CORRECTED.pdf

Heartland Express, Inc. of Iowa v. Farber, __ So. 3d __, 2017 WL 4318608 (Fla. 1st DCA

2017)

Farber was the limited guardian of the property of Torres, who was injured in an accident

with a tractor-trailer driven by Heartland’s employer (Jones). Heartland’s motion for summary

judgment as to choice of law was granted, as was Farber’s motion to limit the testimony of a

trooper. The jury found Jones liable but did not find wantonness and award punitive damages.

Heartland filed a motion for judgment NOV and for new trial, which the trial court denied. The

trial court also denied Farber’s motion for attorney’s fees pursuant to a proposal for settlement,

as the parties had stipulated that Alabama law applied to the substantive issues. But the trial

court granted Farber’s motion for new trial regarding wantonness and punitive damages, finding

that it had erred in allowing the trooper’s testimony. Heartland appealed, and Farber cross-

appealed. The appellate court affirmed as to the trial court’s denial of Heartland’s motion for

judgment NOV and for new trial, and affirmed the denial of Farber’s motion for attorney’s fees.

But it reversed the trial court’s granting of Farber’s motion for new trial regarding wantonness

and punitive damages, stating that Farber

contends on appeal that in light of the fact that Jones himself testified as to all of

the elements of wantonness, “there really is no other explanation other than [the

trooper’s] theory as to why the jury would come to such an erroneous opinion,

which was contrary to the established facts . . . .” In our opinion, however,

[Farber’s] “explanation” is based upon speculation and conjecture as to why the

jury found no wantonness on Jones’s part. It is entirely possible that the jury

accepted Jones’s testimony as to what occurred but simply did not find that his

actions rose to the level of a reckless or conscious disregard of the safety of

others. . . . It is not reasonable though to assume that it was [the trooper’s]

testimony that led to the jury’s verdict on a lack of wantonness. Given that the

testimony pertained to causation, an acceptance of such would have precluded a

finding that Jones was a cause of the accident. Yet, the jury in this case did, in

fact, make such a finding. While [Farber’s] counsel may have been surprised that

the trial court allowed [the trooper’s] deposition to be played, that surprise does

not equate to substantial prejudice, particularly where the trial court permitted

[Farber] to call [a forensics accident reconstructionist] in rebuttal.

https://edca.1dca.org/DCADocs/2015/1157/151157_DC08_09292017_082509_i.pdf

https://edca.1dca.org/DCADocs/2016/1356/161356_DC08_09292017_083136_i.pdf

Thornton v. American Family Life Assurance Co. of Columbus, __ So. 3d __, 2017 WL

4018834 (Fla. 1st DCA 2017)

12

Thornton, a 22-year-old living with and dependent on her parents, was injured when she

fell off a motorcycle. The trial court held that her injuries were covered specified health events as

defined in her mother’s insurance policy, but that she was not covered because she did not

qualify as a “dependent child.” She and her mother appealed, and the appellate court reversed,

holding that “the specific age limit stated in the policy prevails over any contrary, more

restrictive age limit in the generally referenced Tax Code. The policy’s reference to the Tax

Code retains the I.R.C.’s meaning and operative effect for the relationship, residency, and

economic details which do not conflict with the policy’s age provision.” It held further that “to

the extent the age requirement in the policy definition for ‘dependent children’ was not

sufficiently clear, due to the general reference to the Tax Code, Florida law requires resolution of

any ambiguity in favor of the insured.”

https://edca.1dca.org/DCADocs/2016/1472/161472_DC13_09132017_090511_i.pdf

Sajiun v. Hernandez, __ So. 3d __, 2017 WL 3616391 (Fla. 4th DCA 2017)

Hernandez and Sajiun’s decedent (Santiago) were in a collision. Sajiun recovered nothing

and appealed, arguing that “certain improper evidence resulted in the defense verdict, and she

challenge[d] several of the trial court’s rulings,” specifically its permitting, over the plaintiff’s

objection, the following evidence: “1) witness testimony regarding the speed the decedent

motorcycle driver traveled on his motorcycle in the moments preceding the accident; 2) evidence

of the weight of the truck, which was used by the defense expert to calculate the motorcycle’s

speed at impact; and 3) statements the motorcycle driver’s child made to a psychotherapist

regarding an argument.” The appellate court affirmed, finding that the trial court did not abuse its

discretion.

https://edca.4dca.org/DCADocs/2016/0589/160589_DC05_08232017_085632_i.pdf

GEICO v. Mukamal for Lacayo, __ So. 3d __, 2017 WL 3611593 (Fla. 3d DCA 2017)

After an automobile accident in which their son died, the Kastenholzes sued Lacayo.

GEICO, Lacayo’s insurer, notified Lacayo of its reservation of rights to deny coverage because

he was not listed as a driver under the policy. Lacayo disappeared, and GEICO again notified

Lacayo of its reservation of rights because he had failed to cooperate with GEICO’s

investigation. GEICO issued other reservation of rights letters and continued to represent

Lacayo. The jury returned a verdict for $15,350,000 in favor of the Kastenholzes, and the trial

court entered final judgments consistent with the verdict. Final summary judgments were entered

in favor of the Kastenholzes. GEICO sought to decline coverage based on breach of cooperation,

but the appellate court affirmed, “concluding that insurance coverage existed as a matter of law

because there was no genuine issue of material fact that GEICO failed to comply with the Claims

Administration Statute, section 627.426, Florida Statutes (2015).” It did not comply with the

written “refusal to defend” by registered or certified mail, but rather continued to defend Lacayo.

Nor could GEICO “obtain from Lacayo a ‘nonwaiver agreement’ or ‘retain[ ] independent

counsel which [was] mutually agreeable to the parties’ because Lacayo had absconded.”

http://www.3dca.flcourts.org/Opinions/3D15-2750.pdf

Choi v. Auto-Owners Insurance Co. __ So. 3d __, 2017 WL 3495603 (Fla. 2d DCA 2017)

13

Beutler was the driver of the vehicle that allegedly struck the car Choi was riding in. Choi

sued Beutler and Auto-Owners (Choi’s UM insurance carrier), and the trial court granted Auto-

Owners’ motion to sever the causes of action. Choi sought review, which the appellate court

granted, concluding that “because all [the] claims were inextricably interwoven, the circuit court

departed from the essential requirements of the law by granting the motion to sever.”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2016,%20

2017/2D16-4642co.pdf

GEICO v. Nocella, __ So. 3d __, 2017 WL 3495448 (Fla. 2d DCA 2017)

Nocella got a judgment against GEICO’s insured after an automobile accident. Thirty-

two days after the judgment was entered, Nocella moved to join GEICO as a party defendant to

the damages judgment, which the court granted. GEICO sought review, and the appellate court

quashed the trial court’s order, noting that Nocella had “filed her motion to join GEICO . . .

thirty-two days after entry of the final judgment and fifteen days after [the latest date that she

could have properly moved to join GEICO]. Accordingly, she failed to satisfy both section

627.4136(4) and the fifteen-day requirement in rule 1.530(g).”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2016,%20

2017/2D16-4696.pdf

Miccosukee Tribe of Indians of Florida v. Lewis Tein, P.L., __ So. 3d __, 2017 WL 3400029

(Fla. 3d DCA 2017)

After a car accident, the family of the deceased (Bermudez) filed a wrongful death action

against two members of the Miccosukee Tribe. Although the Tribe was not a party, it paid the

law firm of Lewis and Tein to defend the defendants. The plaintiffs were awarded $3.177

million. Roman, the Tribe’s new attorney, gave the plaintiffs’ attorney copies of checks and

check stubs payable to Lewis and Tein for $3.177 million, after which the plaintiffs’ attorney

filed a claim of perjury and fraud action against Lewis and Tein, which turned out to be false. In

a previous opinion the Third District Court of Appeal held that “the Tribe and Roman’s conduct

in providing the [plaintiffs’] attorney with the checks constituted a waiver of the Tribe’s

sovereign immunity.” The Tribe filed actions against Lewis and Tein, including allegations of

racketeering, fraud, and breach of fiduciary duty, and Lewis and Tein filed a complaint against

the Tribe alleging malicious prosecution and civil remedies for criminal practices. The Tribe

filed a motion to dismiss the action filed against it based on sovereign immunity, which the trial

court denied, concluding that the decision in the tort action “found an explicit waiver of

immunity, and the Tribe’s litigation conduct in the four prior cases ‘demonstrated a clear,

explicit and unmistakable waiver of sovereign immunity with regard to this matter.’” The Tribe

appealed, and the appellate court reversed, stating that the Tribe “did not clearly, unequivocally,

and unmistakably waive its immunity.” It stated further: “Lewis and Tein had a right not to have

their reputations ruined and their business destroyed by the Tribe. Like any injured party, if the

allegations are true they should have proper redress for their injuries. But just as every right has

its remedy, every rule has its exception. The exception here is sovereign immunity. Granting

immunity to Indian tribes is a policy choice made by our elected representatives to further

important federal and state interests. It is a choice to protect the tribes understanding that others

may be injured and without a remedy.”

http://www.3dca.flcourts.org/Opinions/3D16-2826.pdf

14

Rasinski v. McCoy, __ So. 3d __, WL 3318712 (Fla. 5th DCA 2017)

After an automobile accident, Rasinski was found 100% liable for permanent injuries

sustained by McCoy. He appealed, arguing the trial court erred by “(1) denying his motion for

new trial due to opposing counsel’s improper closing argument; (2) denying his motions for

directed verdict, new trial, and remittitur on three grounds; and (3) denying his motion to

determine set-off.” The appellate court affirmed as to the first two arguments, but it reversed “the

trial court’s denials of Rasinski’s motions for remittitur relating to lost earning capacity and to

set off $25,037.56 from the final judgment, an amount for which McCoy’s healthcare provider

waived any right to subrogation or reimbursement.”

http://www.5dca.org/Opinions/Opin2017/073117/5D15-4423.op.pdf

Stewart v. Draleaus, __ So. 3d __, 2017 WL 3169272 (Fla. 4th DCA 2017)

Draleaus and two other plaintiffs sued Stewart after his car struck their motorcycles. Final

judgment was entered in favor of the plaintiffs, and the defendant appealed, arguing that “the

trial court erred in precluding three types of evidence: a witness’s statement to an investigating

police officer, alcohol consumption by the plaintiffs, and a motorcycle license violation by one

of the plaintiffs.” The appellate court agreed and reversed and remanded for a new trial.

https://edca.4dca.org/DCADocs/2015/2320/152320_DC13_07262017_095754_i.pdf

Las Olas Holding Co. v. Demella, __ So. 3d __, 2017 WL 3085329 (Fla. 4th DCA 2017)

Kim, with a blood alcohol level over three times the legal limit, drove into the Riverside

Hotel (owned by Las Olas), injuring Demella and killing his pregnant wife. Demella sued Kim

and Riverside, and Riverside moved for a directed verdict, arguing that the plaintiff had failed to

prove reasonable foreseeability. The trial court denied the motion, and Riverside’s expert

testified that “the chances of a car crash happening at the time of the instant drunk driving

incident were ‘statistically as close to zero as you can get.’” The jury found Kim 85% at fault

and Riverside 15% at fault. Riverside renewed its motion for a directed verdict, which the trial

court denied, and moved for a mistrial during opening and closing arguments based on remarks

made by plaintiff’s counsel, which the trial court also denied. Riverside appealed, and the

appellate court reversed and remanded for the trial court to grant Riverside’s motion for a

directed verdict:

The plaintiff and his wife were, unfortunately and through no fault of their own,

in the wrong place at the wrong time. However, Riverside was also without fault.

Riverside owed no duty of care to invitees within its walls with regard to [the

road], as a danger to the hotel’s invitees from the placement of the pool cabana in

relation to that road was not one of which Riverside knew or should have known.

Additionally, even if a duty was owed, the actions taken to prevent injury were

legally sufficient such that there was no breach of this duty. Finally, even

assuming a duty and a breach, the collision of the severely intoxicated driver’s car

with the pool cabana, at such speed and force as to collapse the steel-reinforced

concrete columns of the cabana, was an extraordinary and unforeseeable event,

making Riverside legally not the proximate cause of any of the injuries suffered in

this highly fact-specific case.

15

The appellate court therefore did not need to address the remarks made by plaintiff’s counsel, but

it did express concern about several of the remarks and “caution[ed] against their future use.”

https://edca.4dca.org/DCADocs/2016/0231/160231_DC13_07192017_085623_i.pdf

Gonzalez v. Stoneybrook West Golf Club, LLC, Inc., __ So. 3d __, 2017 WL 2988826 (Fla. 5th

DCA 2017)

After drinking at Stoneybrook West Golf Club, Hartman, with a blood alcohol content of

.302, caused an automobile accident in which a woman was killed. Gonzalez sued Stoneybrook

as personal representative of the deceased woman’s estate, under Florida’s reverse dram shop

liability statute (section 768.125, Florida Statutes; vendor of alcoholic beverages is not liable for

damages resulting from intoxication unless vendor knew purchaser was “habitually addicted” to

alcohol). The trial court entered summary judgment in favor of Stoneybrook, and Gonzalez

appealed. The appellate court reversed for further proceedings, finding “sufficient evidence to

raise a factual dispute not resolvable by summary judgment as to whether Hartman was

habitually addicted to alcohol and, if so, whether Stoneybrook knew of his addiction.”

http://www.5dca.org/Opinions/Opin2017/071017/5D16-2680.op.pdf

Government Employees Insurance Co. v. Macedo, __ So. 3d __, 2017 WL 2981812 (Fla. 2017)

Macedo and Lombardo were in an automobile accident, and Macedo sued Lombardo.

Lombardo’s insurance policy with GEICO provided bodily injury liability coverage for up to

$100,000 per person and $300,000 per incident and gave GEICO sole authority to settle claims.

Macedo made a proposal for settlement for $50,000, which was not accepted, and the jury

returned a verdict in favor of Macedo for $243,954.55. Macedo joined GEICO to the judgment

and sought taxable fees and costs, which the trial court awarded against GEICO jointly and

severally with Lombardo. On appeal, the First District Court of Appeal affirmed based on New

Hampshire Indemnity Co. v. Gray, 177 So. 3d 56 (Fla. 1st DCA 2015), which held “that the

insurer’s policy provision stating that it would cover ‘other reasonable expenses incurred at our

request’ included costs associated with choosing to litigate a case instead of settling it.” It stated

that “GEICO’s policy with Mr. Lombardo gave it the sole right to litigate and settle claims, and

contractually obligated it to pay for ‘all investigative and legal costs incurred by us’ and ‘all

reasonable costs incurred by an insured at our request,’” which could include “not only the

insurer’s litigation costs, but also those incurred by the opposing party should that party prevail.”

The First District certified conflict with Steele v. Kinsey, 801 So. 2d 297 (Fla. 2d DCA 2001).

The Supreme Court affirmed, holding that “the ambiguous Additional Payments section

of the insurance policy must be construed in favor of coverage for the costs and attorneys’ fees

awarded against the insured pursuant to section 768.79, Florida Statutes.”

http://www.floridasupremecourt.org/decisions/2017/sc16-935.pdf

Harrison v. Gregory, 221 So. 3d 1273 (Fla. 5th DCA 2017)

Gregory was personal representative of the estate of the decedent, who was killed in a

collision with Harrison. Gregory sued Harrison, and the jury found Harrison 75% at fault and the

decedent 25% at fault, and Harrison appealed. The appellate court reversed, finding that “the

cumulative effect of the errors at trial materially prejudiced” the defendant. One error involved

16

the admission into evidence of Harrison’s statement to her sister at the accident scene that she

had just killed someone. The trial court had earlier ruled the statement inadmissible, but at trial it

permitted a witness to testify as to the statement. The second error was the mention by the

estate’s expert witness of “the insurance company.” The third error was when, during closing

argument, the estate’s attorney suggested how the jury should fill out the verdict form and

“inexplicably advised the jury as follows: ‘By the way, 50 percent or more at fault, there’s no

recovery.’ . . . [I]t was highly improper for counsel to advise the jury as to the potential adverse

effect to the parents of the jury’s potential factual findings regarding comparative fault. Frankly,

we can conceive of no reason why counsel would [do so] other than to deliberately and

improperly evoke sympathy and compassion for Decedent’s parents.”

http://www.5dca.org/Opinions/Opin2017/070317/5D16-1037.op.pdf

Heiston v. Schwartz & Zonas, LLP, 221 So. 3d 1268 (Fla. 2d DCA 2017)

Dylan Heiston was killed in an automobile accident, and his brother was appointed

personal representative. Dylan’s parents, the statutory survivors, were represented by the law

firm of Schwartz & Zonas in the wrongful death action, and, as they did not qualify as personal

representatives of the estate, Dylan’s brother Dominic was appointed. He was represented by

Morgan & Morgan. The final accounting of the estate included $50,190.51 to Morgan & Morgan

for fees and costs, but Schwartz & Zonas filed an objection to that disbursement, claiming: “All

assets as stated in the Amended Inventory were collected by the Law Offices of Schwartz &

Zonas LLP during their lawful representation of [Dylan’s parents]. As Morgan & Morgan PA

performed no duties in the collection of Estate Assets, it is not entitled to an attorney fee.”

Schwartz & Zonas also ultimately suggested it receive 80% of the attorney’s fees amount and

Morgan & Morgan would receive 20%. But the trial court ordered the entire attorney’s fee to

Schwartz & Zonas, and Dominic appealed. The appellate court reversed, stating:

The trial court seems to have decided to prefer Schwartz & Zonas for payment of

the entire fee because they became active in the matter before Morgan & Morgan.

In basing its ruling on which law firm was the first to act, the trial court

overlooked that Morgan & Morgan’s client, the personal representative of the

estate, was the sole party who was authorized under the Act to pursue the

claim. . . . The trial court erred in preferring Schwartz & Zonas for payment of the

entire contingent fee simply because they were the first to contact the insurance

companies and to file a lawsuit.

. . . . On remand, the trial court shall reconsider the allocation of the $50,000

attorney’s fee between the two law firms based on the provisions of the Act and

the principles stated in . . . pertinent case law. Thus, the trial court must award the

full $50,000 contingent fee to Morgan & Morgan and then reduce the fee award in

a manner commensurate with the value, if any, of the services that Schwartz &

Zonas provided to the statutory survivors.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/July/July%2007,%202017/2

D16-3417.pdf

17

VI. Drivers’ Licenses

Carpenter v. DHSMV, __ So. 3d __, 2017 WL 3686771 (Fla. 1st DCA 2017)

The appellate court denied the defendant’s motion, noting that “the Department’s records

are ‘prima facie evidence’ that the driver committed the offenses identified in its records, and

that the burden then shifts to the driver to dispute the evidence.”

https://edca.1dca.org/DCADocs/2017/0234/170234_DC02_08282017_091121_i.pdf

S.C. v. State, __ So. 3d __, 2017 WL 2960626 (Fla. 3d DCA 2017)

The defendant used a fake ID at a bar and was charged with possessing a stolen driver

license. He filed a motion for judgment of dismissal because there was no evidence that he had

stolen the license. The trial court denied his motion, and he was adjudicated delinquent for

possessing a stolen driver license. He appealed, but the appellate court affirmed, noting that the

defendant “took the driver’s licenses without having the permission of the owner, and he did it

without the owner having any idea.” Further, the defendant had concealed the stolen licenses in a

separate wallet and ran when the officer was arresting him, “which is consciousness of his guilt”;

he “had on him the identification information of three people . . . and four driver’s licenses; the

photo and the defendant “were so different looking that the bartender called security when she

was showed the license”; and the defendant “was trying to use the fake license to buy something

he would otherwise not be entitled to buy.”

http://www.3dca.flcourts.org/Opinions/3D16-2066.pdf

Rudd v. DHSMV, 25 Fla. Law Weekly Supp. 432a (Fla. 19th Cir. Ct. 2016)

An officer saw the defendant’s vehicle parked with the lights on at a closed business. As

the officer approached, the defendant left the parking lot and the officer followed her, pulled her

over, and noticed indicia of impairment. The defendant was arrested for DUI and her license was

suspended for refusal to submit to a breath test. The hearing officer affirmed the suspension,

finding the encounter to be consensual. The defendant sought review, arguing that the stop was

not lawful. The circuit court, in its appellate capacity, agreed, granted review, and quashed the

suspension, noting that the officer had “approached the [defendant’s] car while still in his patrol

car and turned on his lights. The record is devoid of evidence that he had reasonable suspicion to

believe that [the defendant] had committed, was committing, or was about to commit a crime at

the time he activated his lights and followed [her] vehicle out of the parking lot with his

emergency lights engaged. . . . The Fourth District has routinely held that an officer’s use of

emergency lights evidences an investigatory stop, not a consensual encounter, because the lights

lead a citizen to believe that he is not free to leave.”

Johnson v. DHSMV, 25 Fla. Law Weekly Supp. 429d (Fla. 19th Cir. Ct. 2017)

After being stopped for driving with high beams on and failing to dim them, the

defendant was arrested for DUI and her license was suspended for refusal to submit to a breath

test. She sought review, arguing that the stop was not lawful. The circuit court, in its appellate

capacity, granted review and quashed the suspension, noting that an officer does not have

reasonable suspicion to stop a vehicle for failing to dim headlights when the driver’s lane is

separated from oncoming lanes by a median.

18

Fury v. DHSMV, 25 Fla. Law Weekly Supp. 421a (Fla. 13th Cir. Ct. 2017)

DHSMV discovered that, around ten years earlier, the defendant had obtained a license in

a friend’s name, allegedly for taking drug tests for the friend. No criminal charges were filed

against the defendant because the statute of limitations period had passed. She argued that the

statute of limitations barred the civil penalty of license suspension as well. The circuit court, in

its appellate capacity, agreed, granted the petition, and directed the clerk to close the case file.

Burke v. DHSMV, 25 Fla. Law Weekly Supp. 417a (Fla. 13th Cir. Ct. 2017)

The defendant was charged with leaving the scene of an accident with injuries and his

license was suspended. He filed a petition for writ of certiorari, arguing that (1) he was denied

due process at his hearing because the hearing officer did not permit his criminal defense

attorney to testify, (2) his license was not lawfully suspended because he was not afforded a

preliminary hearing, and (3) “law enforcement failed to timely furnish certain information

required by law.” The circuit court, in its appellate capacity, denied the petition, stating that (1)

the underlying proceeding was an informal review, which “does not contemplate receipt of

testimony,” (2) a “license may be suspended without a preliminary hearing upon . . . sufficient

evidence that a licensee ‘has committed an offense for which mandatory revocation of license is

required upon conviction,’” and (3) “[t]he information [the defendant] claims law enforcement

failed to timely furnish was not required in the context of this case.”

Foster v. DHSMV, 25 Fla. Law Weekly Supp. 404a (Fla. 6th Cir. Ct. 2017)

After stopping the defendant for failing to stop at a stop sign, a deputy smelled alcohol

and noticed that the defendant’s eyes were bloodshot and watery and that his speech was slurred.

The defendant was arrested for DUI and his license was suspended for refusal to submit to a

breath test. He sought review, arguing that the dash cam video evidence contradicted the

deputies’ documentary and testimonial evidence and that there was not competent substantial

evidence that the defendant was lawfully arrested for DUI. The circuit court, in its appellate

capacity, denied review. It noted that the supreme court in Wiggins v. Florida Department of

Highway Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017), stated “that a circuit court in

its appellate capacity is not reweighing the evidence and applies the correct law by rejecting

documentary and testamentary statements of a law enforcement officer as being competent,

substantial evidence when such evidence is ‘totally contradicted and totally negated and refuted

by video evidence of record.’” But it held that the dash cam video in this case did not totally

contradict, negate, or refute the deputies’ reports and testimony.

Bell v. DHSMV, 25 Fla. Law Weekly Supp. 403a (Fla. 6th Cir. Ct. 2017)

The defendant was charged with DUI and his license was suspended for refusal to submit

to a breath test. At his administration hearing he moved to invalidate the suspension, “alleging an

improper reading of implied consent.” The hearing officer denied his motion, and he filed a

petition for writ of certiorari. The circuit court, in its appellate capacity, denied the petition,

stating: “[The defendant] states that [the deputy’s] statement that a second refusal will result in

an 18-Month suspension is a clear misstatement of the implied consent statute [and] that the

suspension should have been overturned by the hearing officer. [He] overlooks the fact that [the

19

deputy] correctly read implied consent before any subsequent misstatement of law. Furthermore,

there is no indication in the record that [the deputy’s] explanation had any exacerbating effect on

[the defendant or his] confusion. [The deputy] was entitled to interpret [the defendant’s] actions

as a refusal to supply a breath sample.”

Flintom v. DHSMV, 25 Fla. Law Weekly Supp. 400a (Fla. 6th Cir. Ct. 2016)

The defendant was charged with DUI and his license was suspended. He filed a petition

for writ of certiorari, arguing that the stop was not lawful and that the person inspecting the

breath testing machines was not properly certified. The circuit court, in its appellate capacity,

had denied the petition, but upon rehearing and/or clarification granted the petition for certiorari

as to the lawfulness of the stop. It held there was a lack of competent substantial evidence to

support the suspension:

The only evidence in the record as to the basis for the stop is the statement of [the

trooper] contained in the arrest and booking report that stated, “I was traveling

south . . . when I observed a vehicle headed North that was flashing its high beam

on the traffic in front of it. There was (sic) several cars in front of the vehicle and

I (sic) continued to flash its high beams for over a block. After the vehicle passed

I proceeded after it with my emergency equipment activated.” As found by the

hearing officer, [the trooper] cited the [defendant] for failing to dim his

headlamps within 300 feet of approaching a vehicle from the rear. . . . The above

facts, without more, do not constitute competent substantial evidence to support a

stop of the [defendant] for this reason.

Vandetti v. DHSMV, 25 Fla. Law Weekly Supp. 399a (Fla. 2d Cir. Ct. 2016)

Based on four DUI convictions, the defendant’s license was revoked. He sought a records

review, arguing that “his driving record did not accurately reflect his convictions.” At his hearing

one of the citations could not be located, but after the close of evidence a copy was found. The

hearing officer informed the defendant’s attorney and set a show-cause hearing, at no cost to the

defendant. The hearing officer for that hearing affirmed the revocation, and the defendant filed a

petition for writ of certiorari. The circuit court, in its appellate capacity, denied the petition,

finding that it was not improper for DHSMV to hold a show-cause hearing after the missing

citation was found, and that the defendant was not unduly prejudiced by the hearing officer’s

decision to reopen the hearing. The court distinguished State, Dept. of Highway Safety and

Motor Vehicles v. Griffin, 909 So. 2d 538 (Fla. 4th DCA 2005), noting that there was no

evidence that the hearing officer in this case “took it upon herself to locate the missing citation

and cause the matter to be set for a new hearing, nor does it appear that [the defendant] requested

her recusal. Even assuming, arguendo, that the [hearing officer] did look for the evidence

herself, [the defendant] cannot demonstrate prejudice because [that hearing officer] did not

preside over the second hearing.” The court also found no evidence that the second hearing

officer was impartial or that the defendant had requested her recusal.

The court held further that regarding the defendant’s argument that DHSMV denied him

due process by failing to conduct the second hearing within 30 days of the request, “he again

relies on the incorrect statute.”

20

The court also held that DHSMV was entitled to rely on uncertified citations, and

because the defendant had not objected to the entry of the citations at the hearing, he did not

preserve the issue of their certification or legibility for review. And “[e]ven if the citations were

improperly considered, [the defendant’s] certified driving record entered during the rehearing

constituted competent, substantial evidence to support the hearing officer’s decision.”

Savnik v. DHSMV, 25 Fla. Law Weekly Supp. 304a (Fla. 15th Cir. Ct. 2017)

A trooper responded to a 911 call about a domestic violence incident. When the trooper

arrived on the scene, the subject vehicle was parked on I-95 and two passengers told the trooper

that the defendant had been driving and had gotten into a fight with another passenger. That

passenger threw the defendant’s keys in the grass “for safety reasons” and walked away. The

trooper noticed indicia of impairment, and eventually the defendant was arrested for DUI and his

license was suspended for refusal to submit to a breath test. He sought review, arguing that the

stop was not lawful. The circuit court, in its appellate capacity, granted review and quashed the

suspension, because the trooper had not observed the defendant driving “and no exceptions to the

misdemeanor warrant requirement were present.”

DHSMV argued that the passenger had conducted a valid citizen’s arrest of the

defendant, from which the trooper “subsequently developed probable cause based on statements

by the other passengers.” The court disagreed, noting: “‘In order to effectuate a citizen’s arrest, a

misdemeanor must not only be committed in the presence of the private citizen, but there must

also be an arrest -- that is a deprivation of the suspect’s right to leave.’ Steiner v. State, 690 So.

2d 706, 708 (Fla. 4th DCA 1997). . . . Although [the defendant] could not find his keys in the

grass, [the passenger’s] leaving the scene was insufficient to detain [him] for the purposes of a

citizen’s arrest.”

Franklin v. DHSMV, 25 Fla. Law Weekly Supp. 303b (Fla. 15th Cir. Ct. 2017)

The defendant was arrested for DUI and his license was suspended for refusal to submit

to a breath test. He sought review, arguing that the stop was not lawful. Although the arresting

officer initially followed the defendant’s vehicle based on a BOLO, the hearing officer found

that the traffic stop was based on the officer’s observation that the defendant’s license plate was

obstructed. The circuit court, in its appellate capacity, granted review and quashed the

suspension, stating: “The officer in this case lacked probable cause to stop [the] vehicle based

upon the frame obstructing the name of the state on his license plate.”

Southerland v. DHSMV, 25 Fla. Law Weekly Supp. 301a (Fla. 4th Cir. Ct. 2017)

The defendant was arrested for DUI and his license was suspended. He sought review,

arguing that the stop was not lawful because the basis for it was the trooper’s conclusory

statement that he saw the defendant weaving “in a matter [sic] that is consistent with the driver

being ill, fatigued or impaired” and saw him cross the lane marker. The circuit court, in its

appellate capacity, granted review and quashed the suspension, noting that the trooper “did not

provide the facts and circumstances underlying these conclusions.”

Williams v. DHSMV, 25 Fla. Law Weekly Supp. 230a (Fla. 18th Cir. Ct. 2017)

21

The defendant failed to stop at a red light, causing a death. His license was revoked, and

he sought a business-purposes-only license. The hearing officer denied the request, and the

defendant sought review, arguing that “the Hearing Officer was biased toward his age and his

most recent car accident during the hearing, and that he was not treated fairly in his request for a

hardship license.” The circuit court, in its appellate capacity, denied review, finding no evidence

of bias or any violation of due process.

Millas v. DHSMV, 25 Fla. Law Weekly Supp. 221a (Fla. 13th Cir. Ct. 2017)

DHSMV denied the defendant’s request for reinstatement of his license, and he sought

review. The circuit court, in its appellate capacity, granted review and quashed the denial order

and remanded for a new hearing. It stated that

the Department applied the wrong statutory criteria in denying [the defendant’s]

request for reinstatement of his driving privilege; the criteria in §322.271(1)(b),

not §322.271(2)(b-c), Florida Statutes, are applicable, where [he] had never been

convicted of [DUI]. . . . Accordingly, the hearing officer need not have considered

whether [the defendant] had driven in the previous 12 months.

In addition, the Court finds some basis in the record that suggests the Department

erred in imposing . . . HTO . . . status on [the defendant] where unrebutted

testimony is that [he] never held a Florida Driver’s License. . . . The issue,

however, was not raised in the proceeding below. The lower tribunal should be

given the opportunity to consider the issue before this Court undertakes review.

VII. Red-light Camera Cases

VIII. County Court Orders

State v. Breese, 25 Fla. L. Weekly Supp. 491a (Broward Cty. Ct. 2017)

The defendant was arrested for DUI and filed a motion to suppress, arguing that the

detention was unlawful for lack of reasonable cause, and that his continued detention for another

officer to determine reasonable cause created an unreasonable delay and violated his Fourth

Amendment rights. The court agreed and granted the motion, stating that “the observations of

bloodshot watery eyes, and the odor of alcohol, without more, was not in and of itself sufficient

to establish reasonable cause to request sobriety exercises. . . . [O]nce [the officer] determined

that there was no medical emergency, he had a legal duty to continue the investigation to

determine whether there was sufficient objective/articulable grounds sufficient to establish

reasonable cause to detain the defendant for suspicion of DUI.” As to the reasonableness of the

delay, the court noted that the first two officers could have conducted a DUI investigation

without waiting for the third officer.

State v. Young, 25 Fla. L. Weekly Supp. 468a (Volusia Cty. Ct. 2015)

The defendant was arrested for DUI and filed a motion to suppress, arguing that “the

deputy seized her without a reasonable suspicion when he ordered her to roll down her window.”

22

The court granted her motion, stating: “The facts known to the deputy at the time of the seizure

were that Defendant was asleep in a lawfully parked car at 1:47 a.m. Courts confronting similar

facts have found no reasonable suspicion to justify a seizure.”

State v. Shattuck, 25 Fla. L. Weekly Supp. 465a (Volusia Cty. Ct. 2017)

An officer outside her jurisdiction saw the defendant’s motorcycle lying in the middle of

an intersection blocking traffic. The defendant was “visibly injured” and belligerent and tried to

leave the scene, and eventually a trooper arrived and arrested him for DUI. He filed a motion to

suppress, arguing that the initial detention was improper because the officer was outside her

jurisdiction and there was no fresh pursuit, mutual aid agreement, or breach of the peace/intent to

arrest warranting a citizen’s arrest; the length of the detention was improper; and there was no

probable cause for the arrest. The court granted the motion and stated, with regard to probable

cause: “While there was a minor type of accident and an odor of alcohol and some other signs of

possible impairment, once [the defendant] was medically cleared, there was not enough evidence

at the point to make a DUI arrest and, standing in the shoes of a private citizen, [the officer]

could not continue a DUI investigation. A person may not be detained once the initial purpose of

a stop has been satisfied and removed.” And none of the three circumstances in which an officer

can arrest a person for misdemeanor DUI existed: the trooper (1) did not witness all elements of

DUI, (2) was not investigating an accident and developing probable cause to charge DUI, and (3)

could not rely on the fellow officer rule because the first officer was outside her jurisdiction and

therefore “the equivalent of a private citizen.”

State v. Hart, 25 Fla. L. Weekly Supp. 461a (Volusia Cty. Ct. 2013)

The defendant refused a breath test and was arrested for DUI. He filed a motion to

suppress, alleging that (1) the stopping deputy unlawfully detained him longer than necessary to

issue a ticket for illegally parking in a roadway, (2) the investigating deputy detained him

without reasonable suspicion or probable cause for a DU1 investigation, (3) he was confused

because a deputy read him his Miranda warnings and advised him of his constitutional right to

remain silent, and therefore his refusal to perform field sobriety exercises should not be used

against him, and (4) the arresting deputy did not handcuff him and state that he was under arrest

before reading the implied consent, so his refusal to submit to a breath test should be suppressed

as not in compliance with section 316.1932, Florida Statutes. The court denied the motions,

stating that (1) the 15-minute wait time between the initial encounter and the arrival of the

investigating deputy was reasonable, (2) the initial detention by the stopping deputy was justified

based on evidence that the defendant “was stopped in the middle of the roadway, asleep at the

wheel, with his engine running and lights on,” and there were indicia of impairment, which were

communicated to the investigating deputy, who also observed such indicia, (3) the confusion

doctrine did not apply, and (4) the arresting deputy substantially complied with the requirements

of section 316.1932.

State v. Philage, 25 Fla. L. Weekly Supp. 459b (Pasco Cty. Ct. 2014)

The defendant was arrested for DUI and filed a second motion to suppress breath test and

breath results because the Intoxilyzer was not inspected by FDLE upon its return to Pasco

County from an authorized repair facility (FDLE). The court denied the motion, noting that the

23

Alcohol-Testing Program Administrator testified for the state that, “although defined as, an

‘authorized repair facility’, [FDLE] is not a repair facility and has never been a repair facility.”

He further testified that to interpret it as a repair facility as argued by the defendant “would result

in agencies all over the State of Florida sending intoxilizer instruments to Tallahassee for annual

{FDLE] inspections; and, having inspected the instruments and returning them to the various

agencies, [an FDLE] inspector would then need to travel to each agency and re-inspect the

instruments before they could be put into evidentiary use.” The court agreed, stating that “[t]o

hold otherwise would lead to an illogical result that upon the return of a breath testing instrument

by [FDLE] to an agency, [FDLE] would need to perform a second or re-inspection.”

State v. Philage, 25 Fla. L. Weekly Supp. 459a (Pasco Cty. Ct. 2014)

The defendant was arrested for DUI and filed a motion to suppress breath test and breath

results because the Intoxilyzer “experienced an inordinate amount of RFI [Radio Frequency

Interference] indicators in the months preceding and after Defendant submitted to her breath

tests.” The court denied the motion, stating: “While this Court appreciates the efforts that

Defendant has put forth regarding the collection of the statistical data and the thoroughness of

her witness’ testimony, there is simply no evidence that a RFI affected Defendant’s breath test.”

State v. Ivanova, 25 Fla. L. Weekly Supp. 458a (Pasco Cty. Ct. 2015)

A BOLO was issued from an anonymous report of driver believed to be impaired. A

deputy followed the described vehicle and, after seeing it drifting, braking erratically, and then

veering left with the right signal on, stopped the defendant. The deputy called in another deputy,

who arrived 17 minutes later and began a DUI investigation. The defendant was arrested and

filed a motion to suppress. The court denied the motion, stating that

in light of the calls of concerned citizens, albeit anonymous, describing the make

of the vehicle and tag number and the driving pattern observed by [the first

deputy] and subsequently corroborated, together with time of day, the difficulty in

operating the vehicle and the Defendant’s slow response, [the deputy] had a

reasonable articulable suspicion that the Defendant was impaired, justifying the

detention to conduct a DUI investigation. . . . While [the first deputy] did not

detect the odor of alcohol, or report any slurred speech, blood shot watery eyes, or

other classic signs of alcohol impairment, he suspected some type of impairment.

Further the lack of these “classic signs” is not dispositive. Other factors may

include the Defendant’s reckless or dangerous operation of a vehicle . . . or lack of

dexterity and the officer need not eliminate all possible defenses in order to

establish probable cause. . . . The court is further not convinced that the caller was

truly “anonymous” or at least that the caller was “aware” of anonymity. [Further,]

the Court finds that the 17 minutes it took [the second deputy] to arrive and begin

his investigation in order to have a more experienced Deputy perform the

investigation was not unreasonable.

State v. Pinto et al., 25 Fla. L. Weekly Supp. 456d (Pinellas Cty. Ct. 2013)

24

The defendants filed motions to suppress breath tests and breath test results because of

alleged problems with the Intoxilyzer 8000. The court denied the motions, stating:

There is nothing on the record or presented into evidence to suggest that the flow

sensor or exhaust port check valve affect the analytical methodology or reliability

of the Intoxilyzer 8000. Furthermore, the Defendants have not presented any

evidence that in their particular breath tests that there was anything unusual or

problematic with the results that may be attributable to either the flow sensor or

exhaust port check valve. As such, this Court finds that the Defendants have

failed to present substantial compelling evidence that their breath tests were not

performed in substantial compliance with the Florida Implied consent law and are

unable to shift the burden of showing compliance to the State. Furthermore, the

Defendants have failed to demonstrate that the flow sensor or exhaust port check

valve affects the analytical methodology or reliability of the Intoxilyzer 8000 or

that the Intoxilyzer 8000s used in their cases had any issues with either the flow

sensor calibration or the exhaust port check valve.

State v. Lagardere, 25 Fla. L. Weekly Supp. 456c (Pasco Cty. Ct. 2015)

The court denied the defendant’s motion to suppress Intoxilyzer and refusal to submit,

stating that “the Defendant’s Refusal to take a breath test is admissible without the proof that the

breath test instrument is in substantial compliance with the rules. Whether a test was not

approved or did not comply with administrative rules and regulations are matters which,

although relevant to the admissibility of a breath test, are irrelevant where the test has been

refused.”

State v. Raneiri, 25 Fla. L. Weekly Supp. 456b (Pinellas Cty. Ct. 2016)

The court denied the defendant’s motion for a Daubert hearing and motion to exclude

field sobriety exercises, stating: “[T]he Field Sobriety Exercises (excluding the Horizontal Gaze

Nystagmus) are not scientific and do not fall within the purview of either Daubert or Florida

Statute Section 90.702. . . . As a result, the Defendant’s request for a Daubert Hearing is denied.

Furthermore, lay opinion testimony is permissible with regard to the Defendant’s impairment

and performance on the Field Sobriety Exercises. . . . This longstanding rationale remains in

place, and Florida’s adoption of the Daubert standard has not eliminated the State’s ability to

elicit such lay opinion testimony.”

State v. Berger, 25 Fla. L. Weekly Supp. 456a (Pasco Cty. Ct. 2013)

The defendant filed a motion to exclude for lack of substantial compliance because “[i]t

was uncontested that in late 2004 and into 2005, a pin hole was drilled in every Intoxilyzer 8000

in Florida, and that prior written notice was not given to FDLE by the manufacturer.” The court

denied the motion, stating:

Specifically, the State argues that the Defense failed to prove that the Intoxilyzer

8000 at issue (serial number 80-001117) was a “previously approved” instrument,

defined in Florida Administrative Code Rule 11D-8.003(2) (2002) as “. . . CMI,

Inc. Intoxilyzer 8000 using software approved by the Department. . . .”

25

The State relies on the testimony of the Defense expert who said the software

approved by the Department was not in use in the Intoxilyzer 8000 until 2005,

and he did not know when during the late 2004 into 2005 time frame the pin hole

was drilled in the Intoxilyzer 8000 at issue.

The Court agrees that the Defense failed to shift the burden of proof to the State.

State v. Diaz, 25 Fla. L. Weekly Supp. 455b (Pinellas Cty. Ct. 2016)

The court granted the state’s motion to strike the defendant’s motion to exclude field

sobriety exercises, stating that “the Field Sobriety Exercises (excluding the Horizontal Gaze

Nystagmus) are not scientific and do not fall within the purview of FL. Stat. §90.702, as a result,

the Court denies the Defendant’s request for a Daubert hearing prior to trial.”

State v. Boyer, 25 Fla. L. Weekly Supp. 391a (Broward Cty. Ct. 2017)

The defendant was arrested for DUI, and an electronically filed information was not

received by the court clerk until after the speedy trial period expired. The defendant filed a notice

of expiration and a motion for discharge, which the court granted, stating: “The Florida Supreme

Court mandated the electronic filing of court documents in criminal cases to begin on October 1,

2013. . . . The original paper Information deposited with the Clerk . . . did not become part of the

official court file as it was not converted to an electronic document, indexed, and stored in the

official court file. There was no testimony that the State intended that [it] was to become part of

the official court file. Had the State relayed its intention as such, then the Clerk was bound by the

rules to convert the Information into an electronic document. This was not done.” The court also

noted that the exception for parties who are unable to electronically file was not applicable.

Kurow v. Infinity Auto Insurance Co., 25 Fla. L. Weekly Supp. 368a (Orange Cty. Ct. 2017)

After a motor vehicle collision, the plaintiff sued the defendant and her insurer for

diminished value to his vehicle. The insurer denied coverage for diminished value, and the

plaintiff sought a summary judgment on the issue. The court granted the summary judgment,

noting the defendant’s policy did not include an exclusion for diminished value, and that

“‘Damages’ is not defined in the Policy, so this Court must look to Florida law for the legally

recognized elements of damages. . . . One of the elements of damages that a person can recover

when a motor vehicle suffers property damage is diminished value. Under Florida law,

diminished value is the difference between the value of the vehicle that suffered property damage

immediately before the collision and its value after it was repaired and returned. . . . Thus,

Plaintiff’s claim for diminished value . . . is covered as a damage caused by property damage.”

State v. Kennedy, 25 Fla. L. Weekly Supp. 362c (Volusia Cty. Ct. 2017)

After investigating a single-vehicle accident, the arresting officer wrote the defendant a

citation for an expired registration. But the officer did not give the defendant his copy of the

citation right away but rather sought to observe him further “to see if he displayed indicators of

impairment.” Based on observations of such indicia, the arresting officer started a DUI

investigation and the defendant was arrested. The defendant filed a motion to suppress, which the

court granted, holding that the defendant was detained without a reasonable suspicion:

26

Once a vehicle is lawfully stopped, a law enforcement officer may conduct an

investigation reasonably related in scope to the circumstances that justified the

traffic stop. This investigation may include asking the driver for an operator’s

license, insurance and registration. Also, the officer may run a computer check to

determine whether the vehicle involved in the stop has been stolen and whether

the driver has any outstanding warrants. However, absent an articulable suspicion

of criminal activity, the time an officer takes to issue a citation should last no

longer than is necessary to make any required license or registration checks and to

write the citation.

. . . [T]here is a bright-line rule that any delay without a reasonable suspicion is

unconstitutional. . . .

In this case, there is no issue with the detention of Defendant for the purposes of

conducting the accident investigation and writing the civil citation. However,

when the police decided to prolong the detention to see if Defendant showed signs

of impairment, they had at most a bare suspicion that he was under the influence.

A bare suspicion is not enough to warrant an investigative detention under the

Fourth Amendment.

State v. Demauney, 25 Fla. L. Weekly Supp. 362a (Pinellas Cty. Ct. 2016)

The defendant filed a motion to suppress breath test “based on an alleged failure to

comply with administrative procedures.” The court struck the motion and considered it a motion

in limine, stating: “Defendant seeks to have the Court make a pretrial evidentiary ruling on the

admissibility of evidence based upon a procedural violation. This is a matter properly addressed

with a contemporaneous objection at trial or in a pre-trial motion in limine, not a motion to

suppress. . . . The moving party bears the burden of proof in a motion in limine.”

State v. Lardeo, 25 Fla. L. Weekly Supp. 359a (Pinellas Cty. Ct. 2016)

The defendant filed a motion to suppress breath test “based on an alleged failure to

comply with administrative procedures.” The court struck the motion and considered it a motion

in limine, stating: “Defendant seeks to have the Court make a pretrial evidentiary ruling on the

admissibility of evidence based upon a procedural violation. This is a matter properly addressed

with a contemporaneous objection at trial or in a pre-trial motion in limine, not a motion to

suppress. . . . The moving party bears the burden of proof in a motion in limine.”

State v. Patterson, 25 Fla. L. Weekly Supp. 359b (Pinellas Cty. Ct. 2016)

The defendant was arrested for DUI and filed a motion in limine as to the horizontal gaze

nystagmus test. The court denied his motion, finding that the officer was “qualified to testify at

trial regarding his administration of the HGN test on the Defendant” and that “the HGN test

satisfies the requirements of Daubert.”

State v. Coulter, 25 Fla. L. Weekly Supp. 357a (Duval Cty. Ct. 2015)

27

The defendant was arrested for DUI and filed a second motion in limine as to the

horizontal gaze nystagmus test. The court denied his motion, stating:

Defendant had previously sought to limit the scope of its original Motion in

Limine solely to the issue of HGN in a partially reclined (or inclined) position.

The Second Motion in Limine re-casts the Daubert challenge in terms of a HGN

“test administered in a reclined position. . . .”

As a starting point, the Court found that there was a sufficiently relevant and

reliable scientific foundation for HGN that is the product of reliable principles and

methods. The Court further finds that . . . the accuracy of HGN does not change

when performed on a seated or reclined patient so long as a protocol was used that

ensured the patient’s head was not moving and their eyes were following the

stimulus. Any arguments as to how [the officer] performed the HGN examination

on the Defendant are more properly made at the trial in this matter.

While the Second Motion in Limine can be properly denied on the merits, it could

also be denied procedurally as untimely.

State v. Coulter, 25 Fla. L. Weekly Supp. 355a (Duval Cty. Ct. 2015)

The defendant was arrested for DUI and filed a motion in limine as to the horizontal gaze

nystagmus test. The court denied his motion, finding that the officer and the state’s expert were

qualified to testify regarding the HGN test and that “there is a relevant, reliable scientific

foundation for HGN that is the product of reliable principles and methods. Additionally, the

Court finds that the use of HGN is generally accepted within the scientific community as a

reliable tool for detection of impairment by alcohol or other drugs.”

State v. Alston, 25 Fla. L. Weekly Supp. 290b (Hillsborough Cty. Ct. 2017)

The defendant got a red-light camera citation and filed a motion to dismiss, citing City of

Hollywood v. Arem, 154 So. 3d 359 (Fla. 4th DCA 2014). But the court denied the motion,

holding that under City of Oldsmar v. Trinh, 210 So. 3d 191 (Fla. 2d DCA 2016), which, rather

than Arem, was applicable, “(a) section 316.0083(1)(a), Florida Statutes authorizes the City of

Tampa to contract with American Traffic Solutions to sort images from a traffic infraction

detector system into queues based on the City of Tampa’s written directives; and (b) sections

316.640(5) and 316.0083, Florida Statutes do not prohibit the City of Tampa from contracting

with [ATS] to electronically generate and mail a notice of violation and uniform traffic citation

after the City of Tampa finds probable cause to issue a notice of violation.”

State v. Burch, 25 Fla. L. Weekly Supp. 289a (Sarasota Cty. Ct. 2017)

The defendant was arrested for DUI and filed a motion in limine to preclude evidence

that he initially refused to submit to a breath test. The court granted the motion, noting: “The

breath test affidavit that is marked ‘subject test refused’ shows that the Intoxilyzer was run at

11:37 pm, which was long after [the defendant] retracted the refusal.” It stated further that to

prohibit consent after an initial refusal would “lead to unnecessarily harsh and self-defeating

results.”

28

State v. Boudreau, 25 Fla. L. Weekly Supp. 271c (Pinellas Cty. Ct. 2017)

The defendant filed a motion to dismiss her red-light camera citation, arguing the city had

illegally delegated tasks to its vendor, and citing City of Hollywood v. Arem, 154 So. 3d 359 (Fla.

4th DCA 2014). But the court denied the motion, noting that the Second and Third District courts

of appeal have issued opinions denying the Arem defense, finding that “when a camera vendor

reviews video images and mails citations to violators, the camera vendor’s activities are merely

ministerial and clerical functions.” It noted further that the Second District Court certified

conflict with Arem and the Florida Supreme Court had not yet decided whether to hear the case.